April 4, 2012

What the Court actually accomplished in 1918 was to thwart democracy and consign large numbers of children to the textile mills for more than two decades. Health care is another context in which the fear of federal power creates a serious risk of ravaging the lives of large numbers of actual people. If the law is upheld, no one is going to be forced to buy broccoli. But if the law is struck down, large numbers of people will die of preventable or treatable diseases, or be bankrupted by medical expenses.
The other, and perhaps most important, analogy is that the challengers to the law, ordinary folk who have been persuaded that they are fighting to preserve their liberties, are likely to be badly hurt if they win. They are frightened of federal power, but they really should be frightened of their “friends” who are trying to shake off government regulation. The prevailing claim in Hammer [v. Dagenhart] was made by a father whose sons had been working sixty hours per week in a North Carolina factory. He claimed that the law violated his rights by depriving him of his children’s earnings. Several years later, Reuben Dagenhart, one of those boys, reflected on the constitutional rights that the Supreme Court had given him. “We got some automobile rides” from the wealthy businessmen’s committee that had financed the litigation. “They bought both of us a Coca-Cola. That’s what we got out of it.” At age twenty, having worked twelve hours a day since the age of twelve, now with a wife and child, he said, “Look at me! A hundred and five pounds, a grown man and no education. I may be mistaken, but I think the years I’ve put in the cotton mills have stunted my growth. They kept me from getting my schooling. I had to stop school after the third grade and now I need the education I didn’t get.”

“It would have been a good thing for all the kids in this state if that law they passed had been kept,” Dagenhart continued. If today’s Supreme Court strikes down health care reform, it’s not hard to imagine future Americans expressing similar regrets.

Koppelman seems to be saying that because the Supreme Court had an unduly narrow interpretation of the Commerce Clause in 1918 — rejecting federal labor law applicable to factories — that it's pernicious to have even the kind of minimal limits on the Commerce Clause that seem to exist today. And he wants us to concentrate on human suffering: Children, sent to work by their parents, were exploited; and everyone, visited by disease, will... Hmmm. Will what? Koppelman says they "will die... or be bankrupted by medical expenses."

But hospitals must treat emergency patients. It really is a problem that some people use this service and fail to pay their bills. But even if you assume the Commerce Clause empowers Congress to solve that market dysfunction — patients consuming a service they can't pay for — the individual mandate requires a purchase of insurance that covers vastly more services than these required emergency hospital visits.

It seems to me that younger, healthier individuals are being swept in to accumulate an immense fund that will be used to cover the expenses of older, sicker folks. It's the exploitation of the young, ironically. But Koppelman doesn't want you think precisely about what the legislation does, and who's really being required to pay for what. He'd like to roll you up into a big ball of emotion where you visualize poor little children....

... that's the illustration at the link... along with all the poor people who suffer from diseases... and where you ache feelingly.... for the power of Congress.

It's for the children! That what the first Whites told the Native Americans when they first arrived. They said, "How can you turn away this pretty little blonde girl, you Red Supremacists!" And the Indians fell for it and you see how that worked out for them.

Why doesn't anyone just state the obvious? Almost all Whites are pretty much taking care of themselves, this is about extending regular care to tens of millions of Mestizos coming across the border, which will necessitate taking care away from Whites. We are grown-ups, we can speak directly.

"Koppelman seems to be saying that because the Supreme Court had an unduly narrow interpretation of the Commerce Clause in 1918 — rejecting federal labor law applicable to factories — that it's pernicious to have even the kind of minimal limits on the Commerce Clause that seem to exist today.

I'd characterize it more broadly: The ends justify the means. it's an open invitation to simply ignore constitutionality whenever they feel strongly enough about the positive otucomes that legislation may produce.

But hospitals must treat emergency patients. It really is a problem that some people use this service and fail to pay their bills.

I hope you realize that children do get sick with problems that just can't be treated at an emergency (You probably wondered why nobody else at Disney World complained when that bald kid cut in line in front of you.)

Medical bills for chronically and terminally ill children can indeed be devastating, even for the insured if their insurance has a lifetime cap. I have a friend whose daughter had seriously ill. They blew through their lifetime cap of $1 million and by the time the child died at the age of 19, had $421K in unpaid, and unpayable, bills. Because of the constant trips to the hospital (and since the hospital that treated her was a couple hundred miles away, just getting there was a chore), her husband lost his job, making repayment of the unpaid bills even more problematic.

If the individual mandate-an idea first developed by conservatives-is ruled out of bounds then that will leave a government run "Medicare for all" as the only solution left to fix our problem. I predict that within a few years it will be large businesses who will be pleading for it arguing they can not compete with their Asian and European competitors who have national healthcare and that they are being buried under with employee healthcare costs.

Conservatives in their short term desire to see Obama lose might want to be more careful for what they wish for.

It seems to me that younger, healthier individuals are being swept in to accumulate an immense fund that will be used to cover the expenses of older, sicker folks. It's the exploitation of the young, ironically

The Left seems to have a difficult time sticking to a consistent story on the mandate.

On the one hand these 45 million uninsured that are swept up by the mandate are the poor, the sick, etc etc.

Then on alternate days, we're told that the way all the new benefits that are offered like "no denials for pre-existing conditions", "cover kids till 26", etc, etc, will be paid for is because we're going to make sure the insurance pools are expanded by including all these young, healthy scoflaws.

The debate is again being framed as Obamacare or nothing will be done to reform the Health Insurance options.

There is no GOP push back pointing out that this is a constructed corner which Congress with Dem majorities and RINO friends painted itself into.

The GOP leaders in Congress do not go there, because reform plans which will affect winners and losers in the money flows of 1/6th of the economy are, as Blago said, too valuable to giveaway without bribes to the GOP Chairmen.

So let's hear it for good old fashioned deadlock.

But in the meantime the Dems will be able to demagogue sick people until a National Medicare Plan is enacted as the only fix that the GOP/Dems combined cannot concieve of giving us for free.

Reagan was the only Conservative we have ever had in power in DC. RINOS and Dems together agree that Reagan was the only wild card ever aallowed into their casino games. He was never for a guaranteed profit being built in for the Casino's Owners.

Jay Retread wrote:If the individual mandate-an idea first developed by conservatives-is ruled out of bounds then that will leave a government run "Medicare for all" as the only solution left to fix our problem.. . . Conservatives in their short term desire to see Obama lose might want to be more careful for what they wish for.

Is this really, honestly, what you believe, Mr. Retread? That conservatives like the idea of an individual mandate enforced at the federal level, but are now cynically opposing it just because they want to see Obama defeated?I know that this idea is being promoted by the Left, but have you actually ever asked a conservative if this was true?

I am not a policy expert. I have no idea how to solve the problem of financing health care and providing great health care. I want what is good. Okay? But I can't tell you what it is.

Here's how you do it:

Those with more means look immediately around them (starting with their families, then moving to their extended families and neighborhoods, then their towns) and make sure everyone is taken care of.

Oh, but that requires a very high degree of selflessness.

Which comes from a high degree of self control.

Which isn't developed overnight out of thin air, but is developed by denying one's self - exercised over many years - things that otherwise might be indulged in based purely on selfish pursuit, that are not good for one or one's families.

Which is why the left's nonnegotiable position of total sexual and gender and abortion freedom is 180 degrees incompatible with their desire that society care for the poor.

You don't make selfless people from self-indulgent stock.

So, as a very lesser second option we resort to the very crappy method of using the absolute power of the state to force people to do what we all know we should do anyway.

Or, as was once said:

We would not take upon us the yoke of Christ, so now we must tremble under the yoke of Cesar. (Fulton J. Sheen)

Facts are such ugly things to the liberal narrative.The majority of bankruptcies due to medical issues are not because of the bills but rather because of the loss of income. People that sick can't work. But those who have a decent disability policy are seldom bankrupted by the loss of income due to a sever illness.

As for the child labor laws its easy to opine on them in the context of today's per capita GDP. But the early 20th century per capita GDP of the US was far closer to today's Bangladesh than today's US per capita. That is why there still is child labor in the third world, not because those parents love their children less, but they needs their kids to work so they can eat. Only a wealthy nation can afford a measure of socialism.

If we are going to have mandated health insurance then finish the job with mandated disability, long term care, life and burial insurance along with umbrella policies to go beyond the caps in those coverages.

While presumably medicaid for all would be constitutional it would be meaningless if the providers refused to accept the assignments and instead insisted on fee for service with the patient then having to apply for reimbursement. So unless the providers were compelled to only accept government reimbursement Medicaid for all would be like Cuba's food rationing coupons, in theory every one gets enough to eat but in reality the store are mostly empty.

I am not a policy expert. I have no idea how to solve the problem of financing health care and providing great health care. I want what is good. Okay? But I can't tell you what it is.

Well, that's not very helpful.

For someone who has spent the last two years telling us how horrible this law is, you could have spent a little time thinking about how you would resolve the problem. But maybe you don't think there is a problem. After all, you have good insurance provided by the state, why the heck should you care about the rest of society.

The problem is the Lefties can only use sob stories to get what they want; logic will fail them as it's failed them with ZeroCare.

Jeffery said...

It's for the children! That what the first Whites told the Native Americans when they first arrived. They said, "How can you turn away this pretty little blonde girl, you Red Supremacists!" And the Indians fell for it and you see how that worked out for them.

No, the white man said, "We want this land for our kids to grow on".

The Indians answered, "Hey, we kicked all the other Indians off it for ours".

Exactly right. Koppleman's piece isn't an intellectual argument, or even a defense of ObamaCare on the merits. It's the outline of a movie script. Movies don't make intellectual arguments; they try to persuade by making you focus on your feelings. Feel the force, Luke, and don't forget that Obi-Wanabama is the master: that's Koppleman's pitch.

Democrats can't get over their love of Hollywood. Since they live in a fiscal fantasyland, that's hardly a surprise.

They kept me from getting my schooling. I had to stop school after the third grade and now I need the education I didn’t get.”

In 1918 he actually got a better education at the third grade level than many high school graduates get today.

the individual mandate requires a purchase of insurance that covers vastly more services than these required emergency hospital visits.

If the individual 'mandate' also included some choices as to the level of coverage.....not forcing everyone into the same expensive comprehensive plan...there might not be such push back and resistance.

Not only are we being FORCED to buy something, we are not being allowed any choices as to the level or amount of that something.

The weakness in Koppleman's argument as quoted below is his admission that even when Hammer v. Dagenhart was decided, there was no debate that the product of child labor was in interstate commerce, which "meant a completely novel constitutional doctrine: The Court took unto itself the power to decide which harms Congress was permitted to consider when it regulated commerce".

This is a far cry from the court refusing to stretch the definition of interstate commerce to include economic inactivity.

At the time it considered the issue in 1918, there was nothing in the Supreme Court’s case law that suggested any limit on Congress’s authority over what crossed state lines. On the contrary, the Court had upheld bans on interstate transportation of lottery tickets, contaminated food and drugs, prostitutes, and alcoholic beverages.

That’s why the Supreme Court’s invalidation of the law in 1918 astounded even those who had most strenuously opposed enactment.

Conversely, it would be the court's unprecedented expansion of the definitional scope of interstate commerce to include economic inactivity that elicited the "Broccoli Objection" to the insurance mandate, not the specific "harm" to be regulated or fear that “all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.”.

Hammer v. Dagenhart declared—in tones reminiscent of the Broccoli Objection to Obamacare — that if it upheld the law “all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.” Justice Oliver Wendell Holmes, dissenting, wondered how it could make sense for congressional regulation to be “permissible as against strong drink but not as against the product of ruined lives.” The Court responded that unlike all the contraband that it had permitted Congress to block, the products of child labor “are of themselves harmless.” This meant a completely novel constitutional doctrine: The Court took unto itself the power to decide which harms Congress was permitted to consider when it regulated commerce.

Rusty said...cubanbob said...Facts are such ugly things to the liberal narrative.The majority of bankruptcies due to medical issues are not because of the bills but rather because of the loss of income.

Well. In my oldest daughters case it was because her union medical insurance refused to pay for her work induced back injury, which required surgery.Go unions!!

4/4/12 10:33 AM

I understand your situation, not every instance of medical bankruptcies are due to loss of income but the overwhelming majority are. It would be better if insurance companies were allowed to sell umbrella policies that cover situations like yours. As to whether or not you would have a case against the unions that you would need to consult a lawyer.

You could in principle sue the insurer for breach of contract (if the facts are on your side) but you can't sue the government in principle for failing to cover the difference in the payment shortfall in your case. Ultimately the ACA will result in Medicaid for all if upheld and given ten years or so to bankrupt the insurance companies.

What about the known results of socialized medicine? The truth is that the quality and availability of medical care has gone down for everyone in every place it's been tried. We have no reason to believe it would turn out differently here. History reveals the problems of totalitarian systems, because they simply don't work. Every step taken toward totalitarianism is a step that makes going back more problematic. Maybe calling it totalitarianism is too blunt. Call it social engineering. It simply has a history full of spectacular failure. The failure isn't kind to the citizens trapped in it. Think of the children.

"Medical bills for chronically and terminally ill children can indeed be devastating, even for the insured if their insurance has a lifetime cap. I have a friend whose daughter had seriously ill. They blew through their lifetime cap of $1 million and by the time the child died at the age of 19, had $421K in unpaid, and unpayable, bills. Because of the constant trips to the hospital (and since the hospital that treated her was a couple hundred miles away, just getting there was a chore), her husband lost his job, making repayment of the unpaid bills even more problematic."

Can you argue for something without resorting to the typical sob-story anecdote? Can you?

Everyone has a stupid and horribly specific sob story, but that's not how we determine policy in this country and it shouldn't be.

There are a couple of classic leftist "tells." (1) All your property belongs to the state, we are just generously letting you use some of it. (2) All people are equivalent to children, and the state must act as their parents. Leftists are usually smart enough to hide these beliefs. Koppleman not so much.

Well. In my oldest daughters case it was because her union medical insurance refused to pay for her work induced back injury, which required surgery.

If it was "work induced", then the union medical insurance had a valid reason for denying the claim. It should have been paid by the employer's workers' compensation insurance. That is the insurance company you should have been arguing with.

Freder Frederson said...What about the known results of socialized medicine? The truth is that the quality and availability of medical care has gone down for everyone in every place it's been tried.

Do you have any evidence to support this contention, or is it true simply because you want it to be.Have you ever lived in a country or utilized the health care system in a country with "socialized" medicine? You simply do not know what you are talking about.

4/4/12 11:22 AM

Freder I have relatives in the UK. The NHS is full of horror stories. I have a friend in Canada, a doctor no less. Was required to wait three months to have a scan for a tumor behind his eye. He flew to Boston instead to have one done immediately. And as for the ultimate in socialized medicine, ask any Cuban.It is you that doesn't have a clue how in the real world socialized medicine works.

I abandoned reading when concern about broccoli was contrasted with concern about serious health problems. That was at the beginning. It signaled pure bs follows. So I moved on ... to comment about not reading.

Freder I have relatives in the UK. The NHS is full of horror stories. I have a friend in Canada, a doctor no less. Was required to wait three months to have a scan for a tumor behind his eye. He flew to Boston instead to have one done immediately. And as for the ultimate in socialized medicine, ask any Cuban.

...and by the time the child died at the age of 19, had $421K in unpaid, and unpayable, bills.

My goddaughter is 19, and she has $49,850 in unpaid, and unpayable bills. Not because she's ever been seriously ill, mind you, but because people acting "for the children" have run up incredible debts that she and her generation will have to pay off, especially given the shambles of an economy they're inheriting.

I can feel bad about somebody who chooses to spend 19 years living hundreds of miles away from the medical care their daughter desperately needs, but I won't feel so bad that I'll commit my children and grandchildren to indentured servitude.

I have a friend, injured in an automobile accident caused by a city employee engaged in city work. He and another party that had a loved one die in the incident sued the government to get medical expenses and lost wages. But since the government is indemnified, they only got $300,000 (the family of the deceased got $1 million). The $300,000 paid for his initial hospital bill, but he has significant brain damage and can no longer walk and certainly not work. Because his company didn't cause the incident, there is no long term disability. Yeah, they declared bankruptcy, but it was both loss of job and medical expenses, caused by the local government.

Freder: To this I say, see EMD's comment at 11:12

Hey Jackwagon, if you ask for examples, then you are going to get them. If you don't like the answers you get, don't ask softball questions.

Koppelman says they "will die... or be bankrupted by medical expenses."

Is anybody seriously arguing that this will do ANYTHING to lower costs?

Even Obama isn't trying to peddle that.

If the individual mandate-an idea first developed by conservatives-is ruled out of bounds then that will leave a government run "Medicare for all" as the only solution left to fix our problem.

Of course. NO other options exist.

Allowing health insurance to be sold over state lines? Silly talk.

They blew through their lifetime cap of $1 million and by the time the child died at the age of 19, had $421K in unpaid, and unpayable, bills. Because of the constant trips to the hospital (and since the hospital that treated her was a couple hundred miles away, just getting there was a chore), her husband lost his job, making repayment of the unpaid bills even more problematic.

And that's truly sad.

Explain why MY kids should be sentenced into paying for it for the rest of their lives and their kids lives?

Tugging at MY heart strings is lovely. It won't be ME paying for most of it. That will be later generations.

So are you arguing for Medicare for everyone. Apparently there is no constitutional objection to that.

Silly argument. It would not pass. Heck, it took massive accounting gimmicks and parliamentary shenanigans for Obamacare to pass.

Freder Frederson said...Freder I have relatives in the UK. The NHS is full of horror stories. I have a friend in Canada, a doctor no less. Was required to wait three months to have a scan for a tumor behind his eye. He flew to Boston instead to have one done immediately. And as for the ultimate in socialized medicine, ask any Cuban.

To this I say, see EMD's comment at 11:12

4/4/12 11:53 AM

You are such a card! Your whole support for the ACA and advocating for socialized is predicated on a sob story. Great sense humor!

They blew through their lifetime cap of $1 million and by the time the child died at the age of 19, had $421K in unpaid, and unpayable, bills. Because of the constant trips to the hospital (and since the hospital that treated her was a couple hundred miles away, just getting there was a chore), her husband lost his job, making repayment of the unpaid bills even more problematic.

damiksec I must of missed the part where the required care was only available hundreds of miles away requiring the parent to quit their job.

Alex a penny saved is a penny earned but if this thing is upheld we would be so fortunately to only have it cost us pennies.

Explain why MY kids should be sentenced into paying for it for the rest of their lives and their kids lives?

Explain to me how, if there is an unpaid bill of $421,000 to a hospital, you are not already paying for it(through higher insurance premiums and billings for those who can afford to pay).

Unless you are willing to reintroduce debt slavery, people with inadequate or no insurance will be subsidized by most of us whether we like it or not. The point of reform is to spread that burden more rationally.

I don't pay extra federal taxes because it would just go to programs that do me absolutely no good, like the Bureaus of Land Management and Reclamation and fire fighting in National Forests.

Because you are free to, but you outline in the next statement why you don't do so. This is aside from the argument that the BLMR and national forest fires do you no good. I feel very confident that a sufficiently left-leaner could give you plenty of reasons why they do.

My point being that you are free to organize a trust or other charity with the expressed purpose of paying for the medical bills/hardships of those that cannot afford it due to catastrophic illness/injury. Do so. You'll probably feel the better for it.

Freder, my son and son-in-law work for the Forest Service. They and their families would be affected. So would the families of people living where forest fires happen. My sob story trumps your sob story. (Because it's MY story alrignt! stamp, stamp, closed fists, whiney face)

Terry: Not only does Jay Retard *know* what you *should* think, he knows what you really *do* think, even if you don't think he knows what you think, and even if you think you think something different than he thinks you think. [He shares this vast power with much of the Left, unlike the Right which not only doesn't know what the Left thinks but don't know what they themselves think, assuming that they're capable of thought, which Jay Retard tends to doubt.]

The better analogy is that supporting the individual mandate is like stopping the abolitionists from ending slavery. Both are acts of involuntary exploitation. Both are processed through coercion. The only reasonable dissimilarity is the latter also constrains your liberty.

Anyway, the focus should be on economic development and engaging all American citizens in this productive and voluntary activity. This not only serves to provide for the material needs of the people; but, as it is voluntary, and productive (i.e. not redistributive or retributive) it also serves to mitigate progressive corruption.

Try and focus on what caused the issue. If they were insured completely --- the outcome would have been identical since he had no job.

How so? The $421K would have been covered by insurance. And although they may have been under financial strain, it wouldn't have been the financial strain of unemployment plus $421K of unpaid medical bills.

"I am not a policy expert. I have no idea how to solve the problem of financing health care and providing great health care. "

That shows some real wisdom there, to be aware of what you don't know. Might I suggest one significant step along the way to enlightment w/r/t health care is to get rid of the singular? It's not "the problem of financing health care..."; and it's important to realize this because if you think it is a single, unitary problem then you might think there's a single, unitary solution.

Instead, the solution is to greatly reduce the involvement of government here so that people can find multiple diverse solutions to their multiple diverse problems and issues in the arena of health care. You can call this "the market" if you like, as long as you don't think--or let your opponents claim--that "the market" is a single, unitary force rather than just the aggregate of what people do.

Is Professor Althouse really so silly that she thinks ER care is ideal? I've known cases where the uninsured wait for months before going to the ER, because they fear the doctor bill, only to discover that headache or back pain was a tumor.

A clever tell on the bankruptcy of her argument? She does not engage at all in a legal discussion ofn the issues, just an ad hominem attack on the conclusion of the essay.

I do not think that banning behaviors is the same thing as requiring behaviors. Lets get rid of the mandate and just say, no insurance, no cash, no healthcare. Let the poor get it from the government and the rest of us pay.

Um, wasn't Hammer decided on the grounds that the factory in question was not selling into the interstate market, and thus beyond the CC? And, then Darby seems to have pulled all "labor" (as a market, I suppose) into interstate commerce, thus allowing federal regulation of labor standards.

So, what is the chance that this ruling will include the reasoning that health insurance (or health care) is not interstate commerce? Zero, right?

So, we are back to the merits of the argument as to whether non-participants in a market are really participants, and, if so, how much coercion can the government use, directed at these "participants", in order to rectify the mess that the government has previously created in that market.

And, if that is the grounds of the decision, then it will have zero implication for Darby, right, since there was no argument that - if we stipulate labor is an interstate market - all workers are clearly participants in that market.

I never went to law school, but this seems pretty straightforward logical reasoning to me. I think that Koppelman was merely experimenting with a hypothetical for an intro ConLaw class, and therefore wanted to see how much of the intelligent public could pass a pretty easy test.

You want some evidence that 'socialized medicine' reduces the availability of medical care.

http://www.acurehealth.com/

It's a Canadian insurance company that sells "medical access" or "wait list" insurance. When you get put on the wait list for treatment, the insurance company will find you treatment in Canada or the USA.

Is Professor Althouse really so silly that she thinks ER care is ideal? I've known cases where the uninsured wait for months before going to the ER, because they fear the doctor bill, only to discover that headache or back pain was a tumor.

So you sit back and allow the uninsured to commit suicide? What a prince.

Seeing Red said...After decades of this nonsense, I'm immune to "It's for the Children."

Especially so when you realize the left uses "The Children" to get their socialized foot in the door. Marie Wright Edelman, dedicated socialist, founder of the Children's Defense Fund and mentor to Hillary Rodham Clinton, admitted as much.

Because the socialization of America was moving at too slow a pace, Edelman and her fellows turned their attention to the children on the premise that once social programs were established for their ostensive benefit, legislative creep would assure that evenually those programs would cover everyone.

The SCHIPS program is a good example of that. At first, it was a health insurance program for needy children who weren't covered under Medicade. Now eligibility has been expanded to include their parents and households earning in excess of $80K annually. And remember when welfare was sold as "Aid to Dependent Children"?

The practice is insidious and the left isn't even the least bit ashamed about exploiting "The Children" for their own purposes.

I know that this is a subversive comment, but it is clear that there is not enough money in the country to give first class medical care to everybody. That is surely what the socialized systems have shown, but in those countries, it results in lesser quality care for all (except for political elites and the rich)

Here in America we have our own society, quite different from Europe or Asia. Those with jobs get one level of care, those who qualify as poor get whatever Medicaid gives them (Here in Washington state that is a better level of care than almost any employer plan) and then there are those with income and no insurance, who get care, but then they get a bill. That's where all the bankruptcies come from.

What is wrong with that system? Why must government strive for equality of outcome, when it is clear that said outcome is of lesser quality than what we have now?

timb said...Is Professor Althouse really so silly that she thinks ER care is ideal? I've known cases where the uninsured wait for months before going to the ER, because they fear the doctor bill, only to discover that headache or back pain was a tumor.